PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
LEON J. WINSTON,
Petitioner-Appellee,
v.
No. 11-4
EDDIE L. PEARSON, Warden, Sussex
I State Prison,
Respondent-Appellant.
LEON J. WINSTON,
Petitioner-Appellant,
v.
No. 11-5
EDDIE L. PEARSON, Warden, Sussex
I State Prison,
Respondent-Appellee.
Appeals from the United States District Court
for the Western District of Virginia, at Roanoke.
Samuel G. Wilson, District Judge.
(7:07-cv-00364-SGW)
Argued: May 15, 2012
Decided: June 25, 2012
Before GREGORY, DUNCAN, and DIAZ, Circuit Judges.
Affirmed by published opinion. Judge Diaz wrote the opinion,
in which Judge Gregory and Judge Duncan joined.
2 WINSTON v. PEARSON
COUNSEL
ARGUED: Katherine Baldwin Burnett, OFFICE OF THE
ATTORNEY GENERAL OF VIRGINIA, Richmond, Vir-
ginia, for Appellant/Cross-Appellee. Jennifer Leigh Givens,
FEDERAL COMMUNITY DEFENDER OFFICE, Philadel-
phia, Pennsylvania, for Appellee/Cross-Appellant. ON
BRIEF: Kenneth T. Cuccinelli, II, Attorney General of Vir-
ginia, Richmond, Virginia, for Appellant/Cross-Appellee.
Leigh M. Skipper, Chief Federal Defender, James Moreno,
Aren Adjoian, FEDERAL COMMUNITY DEFENDER
OFFICE, Philadelphia, Pennsylvania, for Appellee/Cross-
Appellant.
OPINION
DIAZ, Circuit Judge:
A Virginia jury convicted Leon Winston of capital murder.
The court, following the jury’s recommendation, sentenced
Winston to death. Winston’s direct appeals failed and his con-
viction became final, at which point he sought habeas relief
in state court. The Supreme Court of Virginia denied relief,
rejecting Winston’s requests for discovery and an evidentiary
hearing.
Winston then filed a habeas petition in federal court. The
district court granted him an evidentiary hearing to explore
whether his trial attorneys were ineffective for failing to raise
the claim under Atkins v. Virginia, 536 U.S. 304 (2002), that
his mental retardation categorically barred imposition of a
death sentence. But the court, after presiding over the hearing,
reversed course and held that it was precluded from consider-
ing any evidence adduced during the federal proceeding.
Looking only to facts presented in the state habeas proceeding
and conducting a deferential review of the state-court deci-
WINSTON v. PEARSON 3
sion, the court denied Winston’s petition for habeas relief.
Winston v. Kelly, 600 F. Supp. 2d 717, 722–23 (W.D. Va.
2009).
We vacated in part the district court’s decision on appeal,
ordering it to conduct a de novo review of Winston’s ineffec-
tiveness claim while entertaining the evidence offered during
the federal hearing. Winston v. Kelly (Winston I), 592 F.3d
535, 553 (4th Cir. 2010). On remand, the district court granted
Winston’s petition for habeas relief and vacated his death sen-
tence. Winston v. Kelly, 784 F. Supp. 2d 623, 626 (W.D. Va.
2011). Virginia timely filed this appeal.
The Commonwealth contends principally that intervening
Supreme Court precedent has eroded the foundation of our
prior opinion in Winston I, compelling us to forgo de novo
review and instead accord substantial deference to the
Supreme Court of Virginia’s decision denying habeas relief.
Under the appropriate standard, maintains the Common-
wealth, Winston’s habeas petition lacks merit.
We disagree and find nothing in recent Supreme Court
decisions that calls into question our reasoning in Winston I,
which, as law of the case, we may not lightly disturb. Review-
ing Winston’s ineffectiveness claim de novo, we agree with
the district court that Winston has established that his trial
attorneys rendered deficient performance that prejudiced him.
We therefore affirm the district court’s grant of habeas relief.1
I.
A.
On the morning of April 19, 2002, two men broke into
Rhonda and Anthony Robinson’s home and killed them.
1
As we explain below, we reject Winston’s cross-appeal and affirm the
district court’s judgment as to remedy.
4 WINSTON v. PEARSON
Police later arrested Winston, and the Commonwealth
charged him with capital murder and several lesser crimes.
Winston proceeded to trial, at which a jury found him guilty
of capital murder and related crimes.
During the sentencing phase of the trial, Winston’s attor-
neys presented records of his psychological evaluations and
testimony about his family history. The attorneys used the
records and testimony as ordinary mitigating evidence to illu-
minate Winston’s troubled childhood and subaverage intellec-
tual functioning, but not to establish mental retardation. At the
conclusion of the sentencing proceeding, the jury recom-
mended a sentence of death for each of the murders. Agreeing
with the jury’s recommendation, the court sentenced Winston
to death. The Supreme Court of Virginia affirmed the convic-
tions, and the U.S. Supreme Court denied Winston’s petition
for certiorari.
B.
Winston filed a habeas petition in the Supreme Court of
Virginia, raising dozens of claims. Refusing—without expla-
nation—Winston’s requests for an evidentiary hearing and
discovery, the Supreme Court of Virginia denied all relief.
Germane to this appeal, the court rejected Winston’s Atkins
and Atkins-related claims. Winston maintained that Atkins
barred his execution because he met Virginia’s statutory defi-
nition of mental retardation. In support of this contention,
Winston offered a Fairfax County Public Schools special-
education eligibility reclassification form ("Reclassification"),
which indicated that school officials had reclassified him as
mentally retarded. He was unable to proffer any IQ scores or
other data on which counselors relied to make this determina-
tion. Winston also submitted the scores of three IQ tests, all
of which exceeded 70, the maximum score that Virginia
accepts as evidence of mental retardation.
WINSTON v. PEARSON 5
The Supreme Court of Virginia first held that Winston’s
Atkins claim, raised for the first time in the habeas petition,
was barred for failure to exhaust. It then considered whether
the failure of Winston’s trial attorneys to present evidence of
his mental retardation amounted to ineffectiveness of counsel,
such that it would excuse the procedural default. The court
answered this query in the negative, concluding that Winston
had "failed to demonstrate that counsel’s performance was
deficient or that there is a reasonable probability that, but for
counsel’s alleged error, the result of the proceeding would
have been different." J.A. 306. It found no evidence that Win-
ston had been "diagnosed as being mentally retarded before
the age of 18 in accordance with the legal definition of mental
retardation established by the legislature." Id. 305–06. None
of the three IQ scores presented to the court were 70 or below,
which precluded Winston from meeting the state’s criteria for
mental-retardation classification. Although Winston presented
the Reclassification, the court noted that students may be clas-
sified as mentally retarded for educational purposes even if
they have an IQ above 70.
C.
1.
Winston next filed a habeas petition in the U.S. District
Court for the Western District of Virginia, pursuant to 28
U.S.C. § 2254. Winston’s petition raised in excess of thirty
claims. In an initial decision, the court rejected all of the
claims save for his Atkins and Atkins-related claims. As to
those, the court "conclude[d] that an evidentiary hearing [was]
appropriate to determine whether counsel rendered ineffective
assistance at sentencing both as a free-standing claim and as
cause and prejudice to excuse procedural default of Winston’s
Atkins claim." J.A. 611. Winston’s diligence in pursuing the
claims, combined with the real possibility that he could pre-
vail even under the deferential standards of the Antiterrorism
and Effective Death Penalty Act ("AEDPA"), confirmed the
6 WINSTON v. PEARSON
propriety of ordering an evidentiary hearing, reasoned the
court.
Winston used the evidentiary hearing to sharpen his
ineffective-assistance-of-counsel claim. Most crucial, the
hearing enabled Winston to produce for the first time a 1997
IQ test, taken when he was sixteen years old, reflecting a
score of 66. Because Virginia law mandates that an individual
prove an IQ of 70 or below to support his classification as
mentally retarded, presentation of the 1997 test was vital to
Winston’s Atkins ineffectiveness claim.
The attorneys who represented Winston at trial, Glenn Ber-
ger and B. Leigh Drewry, Jr., testified at the evidentiary hear-
ing. Although they obtained Winston’s educational records
from Fairfax County Public Schools, neither Berger nor
Drewry read the complete records. Instead, they sent them to
Dr. Evan Nelson, Winston’s court-appointed mental-health
expert. The attorneys testified that they had no strategic rea-
son for neglecting to review the records prior to forwarding
them to Nelson. Included in the records that counsel failed to
review was the Reclassification, which reflected school offi-
cials’ determination that Winston was mentally retarded. As
Drewry, who led preparation for the penalty phase of the trial,
testified, review of the Reclassification would have prompted
him to investigate Winston’s mental retardation.
Not only did counsel not review Winston’s school records,
they failed to interview any of Winston’s teachers or counsel-
ors at the school. At the evidentiary hearing, several school
officials recounted their experiences with Winston, which
convinced them of his severe limitations in cognitive func-
tioning. These officials would have testified during Winston’s
sentencing hearing, but his attorneys never sought them out.
Marilynn Lageman, one such official, would have provided
evidence of Winston’s 66 IQ score had she been contacted by
Winston’s attorneys. Although the result of that test was not
included in the school records obtained by counsel, Lageman
WINSTON v. PEARSON 7
testified that the score was saved on a computer disk in her
office at the time of the trial. Because she was a school psy-
chologist who was actively involved with Winston’s educa-
tion, Lageman’s name appeared on some of the records
obtained by counsel. Drewry testified that he would have
interviewed Lageman if he had seen the records listing her
name.
Nelson, Winston’s court-appointed mental-health expert,
testified about his evaluation of Winston’s case. Based on the
information at his disposal, Nelson concluded at the time of
trial that Winston likely did not satisfy the diagnostic criteria
for mental retardation under Virginia law. Although he
reviewed the school records obtained by counsel, Nelson did
not recall specifically considering the Reclassification. He
stated that a closer review of that form along with receipt of
information from Winston’s school teachers and counselors
would have been important to his analysis. Indeed, had Nel-
son noticed the Reclassification, he would have investigated
the circumstances surrounding it. For his part, Drewry stated
that he would have followed up with Nelson and brought the
Reclassification to his attention, had he noticed it. Nelson fur-
ther testified that the 66 IQ score would have been significant
to his analysis. In sum, Nelson stated that consideration of the
Reclassification, the 66 IQ score, and information from Win-
ston’s school teachers and counselors could have impelled
him to determine that Winston was, in fact, mentally retarded
under state law. "It’s certainly possible," testified Nelson, "my
opinion might have been different with this wealth of other
information." Id. 720.2
As it played out at trial, however, Winston’s attorneys
2
Two other experts submitted reports for use in the evidentiary hearing.
Dr. Daniel Reschly, Winston’s expert, determined that Winston was men-
tally retarded under Virginia law. The Commonwealth countered with a
report from Dr. Leigh Hagan, who concluded that Winston was not men-
tally retarded pursuant to Virginia law.
8 WINSTON v. PEARSON
decided not to call Nelson to testify. Drewry felt that Nelson’s
testimony would in fact damage Winston’s case, as it would
allow the Commonwealth to introduce Nelson’s conclusions
that Winston exhibited antisocial behavior and had a capacity
for future dangerousness. Berger and Drewry thus chose not
to press the claim that Winston was mentally retarded under
Virginia law.
Though the district court allowed Winston to develop his
Atkins and Atkins-related claims at an evidentiary hearing, it
ultimately determined that it could not consider any of the
evidence produced for the first time in the federal arena. Find-
ing that the 66 IQ score "fundamentally alter[ed] Winston’s
ineffective assistance claim and [Winston] [could not]
account for his failure to present it to the Supreme Court of
Virginia," the court held that Winston failed to exhaust the
newly positioned claim, constraining it to consider the claim
only "as it was fairly positioned before the Supreme Court of
Virginia." Winston, 600 F. Supp. 2d at 722.
The district court moreover noted that the state-court deci-
sion qualified as an adjudication on the merits, requiring it to
apply the deferential standards of 28 U.S.C. § 2254(d). View-
ing only the evidence presented in state court through the
prism of § 2254(d), the court concluded that "the Supreme
Court of Virginia’s adjudication on the merits of Winston’s
ineffective assistance claim, at least as to Strickland’s [Strick-
land v. Washington, 466 U.S. 668 (1984)] prejudice prong,
was not unreasonable." Winston, 600 F. Supp. 2d at 723. The
court consequently denied Winston’s habeas petition.
2.
We vacated in part the district court’s decision on appeal,
deeming erroneous its denial of Winston’s Atkins and Atkins-
related claims but affirming on all other grounds. We first
held that "it was error for the district court to refuse to con-
sider [the 66 IQ score] because the score does not fundamen-
WINSTON v. PEARSON 9
tally alter Winston’s claims and because habeas counsel was
diligent in searching for it." Winston I, 592 F.3d at 539.
Explaining that a district court may "consider new evidence
if it supports factual allegations for which there is already at
least some support in the state record," we concluded that
Winston had cleared this bar by "offer[ing] some evidence in
state court to support the factual claim that he possesses sig-
nificantly sub-average intellectual functioning as measured by
a standardized test." Id. at 550. And because Winston was dil-
igent in seeking the evidence to support his Atkins and Atkins-
related claims, we determined that the court on remand was
required to consider the claims with the 66 IQ score as evi-
dence.
We then weighed the appropriate standard under which the
district court was required to review the state-court denial of
Winston’s habeas petition. We ultimately concluded that def-
erence to the Supreme Court of Virginia’s decision was
unwarranted under § 2254(d), because that court had not adju-
dicated Winston’s claims on the merits. The district court was
obligated, however, to extend deference to any relevant fac-
tual findings made by the state court, as provided in
§ 2254(e)(1).
That the Supreme Court of Virginia did not adjudicate
Winston’s Atkins ineffectiveness claim on the merits served as
the linchpin of our decision. We reasoned that, when a state
court does not adjudicate a claim on the merits, AEDPA def-
erence is inappropriate and a federal court must review the
claim de novo. Whether a claim has been adjudicated on the
merits is a case-specific inquiry, and we consequently rejected
Winston’s entreaties to hold that § 2254(d) "will never apply
once the district court has granted an evidentiary hearing." Id.
at 553. But when a state court unreasonably refuses to permit
"further development of the facts" of a claim, de novo review
might be appropriate:
[W]hen a state court forecloses further development
of the factual record, it passes up the opportunity that
10 WINSTON v. PEARSON
exhaustion ensures. If the record ultimately proves to
be incomplete, deference to the state court’s judg-
ment would be inappropriate because judgment on a
materially incomplete record is not an adjudication
on the merits for purposes of § 2254(d). New, mate-
rial evidence, introduced for the first time during
federal habeas proceedings, may therefore require a
de novo review of petitioner’s claim.
Id. at 555–56 (citations omitted). Lest our holding be viewed
as a pliable safety valve for habeas petitioners, we reiterated
that "the requirements that petitioners exhaust their state rem-
edies and diligently develop the record in state court are
exacting burdens." Id. at 556. Indeed, new evidence submitted
in federal court that fundamentally alters a claim presented in
state court will render that claim unexhausted. Similarly, that
a petitioner requested an evidentiary hearing from the state
court, without more, might not always suffice to satisfy
AEDPA’s diligence requirement.
Turning to the facts of Winston’s case, we determined that
the Supreme Court of Virginia had not adjudicated his Atkins
ineffectiveness claim on the merits. We first reasoned that
Winston’s 66 IQ score "is material to whether he is retarded
under Virginia law and therefore material to whether he was
prejudiced . . . by his counsel’s conduct." Id. at 557. We
stressed that the state court "had its opportunity to consider a
more complete record, but chose to deny Winston’s request
for an evidentiary hearing." Id. at 553. The state court’s denial
of discovery and an evidentiary hearing produced an adjudica-
tion of "a claim that was materially incomplete." Id. at 557.
And because the ineffectiveness analysis requires a "collec-
tive evaluation of the evidence rather than an analysis con-
fined to a subset of the facts," we concluded that the state
court’s legal conclusions were not "neatly separable into those
based on a complete record and those based on an incomplete
record." Id. We accordingly instructed the district court to
WINSTON v. PEARSON 11
extend no deference under AEDPA to the Supreme Court of
Virginia’s application of the ineffectiveness standards.
Relevant factual findings made by the Supreme Court of
Virginia were entitled to deference under § 2254(e)(1), we
acknowledged. Such findings included those made on the
basis of Winston’s three above-70 IQ scores and the standards
used by the Fairfax County Public Schools when assessing
whether a student is mentally retarded. But "[w]here the
[Supreme Court of Virginia] did not make a factual finding,"
we instructed the district court to "make its own without
regard to what the state court might have done." Id.
3.
On remand, the district court granted Winston’s habeas
petition as to his Atkins ineffectiveness claim. The court first
concluded that Winston’s trial attorneys rendered deficient
performance for failing to review the school records and con-
duct follow-up investigations on the legal issues implicated by
the documents. It adjudged the deficiency prejudicial, ascer-
taining a "reasonable probability that but for counsel’s unpro-
fessional errors, the outcome of Winston’s proceeding would
have been different"—i.e., he would not have been sentenced
to death. Winston, 784 F. Supp. 2d at 626. Heeding our direc-
tive in Winston I, the court accorded § 2254(e)(1) deference
to two factual findings of the state court: that Winston
achieved scores of 77, 76, and 73 on three IQ tests; and that
he could have been reclassified as mentally retarded by school
officials even without scoring 70 or below on an IQ test. In
its statement of remedy, the court ordered the Commonwealth
to "conduct a trial on the question of whether Winston is men-
tally retarded, and sentence him accordingly, or otherwise
resentence him without the possibility of death." Id. at 635.
Challenging the form of relief, Winston moved to alter or
amend the judgment so that the court would expressly grant
him a full sentencing retrial, not merely a limited trial on
12 WINSTON v. PEARSON
mental retardation. The court denied Winston’s motion. It first
acknowledged that its "notation concerning the consequences
of [its] decision is essentially surplusage," as it lacked author-
ity to describe with precision the steps that the Common-
wealth must take to comply with its mandate. Supp. J.A. 35.
In any event, reasoned the court, its "wording [of the remedy]
was intended to make it plain that Virginia could comply with
the writ without conducting a full resentencing." Id.
These appeals followed.
II.
To effectuate a regime that embraces federalism in the
habeas realm, AEDPA carefully circumscribes federal review
of the habeas claims of state prisoners. The statute erects a
formidable obstacle to state prisoners seeking to disturb state-
court habeas decisions:
(d) An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the
judgment of a State court shall not be granted
with respect to any claim that was adjudicated
on the merits in State court proceedings unless
the adjudication of the claim—
(1) resulted in a decision that was con-
trary to, or involved an unreasonable
application of, clearly established
Federal law, as determined by the
Supreme Court of the United States;
or
(2) resulted in a decision that was based
on an unreasonable determination of
the facts in light of the evidence pre-
sented in the State court proceeding.
WINSTON v. PEARSON 13
28 U.S.C. § 2254(d). "[A] determination of a factual issue
made by a State court shall be presumed to be correct" in such
a case, with the petitioner bearing "the burden of rebutting the
presumption of correctness by clear and convincing evi-
dence." Id. § 2254(e)(1).
We consider the Commonwealth’s appeal against the back-
drop of AEDPA and our prior opinion in this case.
III.
We turn first to determine the amount of deference properly
accorded the Supreme Court of Virginia’s decision denying
Winston’s habeas petition. It is critical, at the outset, to frame
the bounds of our inquiry, constrained as it is by the law-of-
the-case doctrine. We are not writing on a blank slate, at lib-
erty to revisit our decision in Winston I on a whim. Winston
I, as the law of the case, "‘continue[s] to govern the same
issues in subsequent stages in the same case,’" TFWS, Inc. v.
Franchot, 572 F.3d 186, 191 (4th Cir. 2009) (quoting United
States v. Aramony, 166 F.3d 655, 661 (4th Cir. 1999)), and we
will not "reconsider our previous holding" absent "extraordi-
nary circumstances," Athridge v. Aetna Cas. & Sur. Co., 604
F.3d 625, 632 (D.C. Cir. 2010) (alteration and internal quota-
tions omitted). Thus our legal conclusions in Winston I are
subject to challenge only, as is relevant here, if "‘controlling
authority has since made a contrary decision of law applicable
to the issue.’" TFWS, Inc., 572 F.3d at 191 (quoting Aramony,
166 F.3d at 661).
The Commonwealth contends that intervening Supreme
Court precedent has impeached the legal framework of Win-
ston I, compelling us to review the state-court decision under
§ 2254(d)’s unreasonableness standard. According to the
Commonwealth, Cullen v. Pinholster, 131 S. Ct. 1388 (2011),
and Harrington v. Richter, 131 S. Ct. 770 (2011), establish
that the Supreme Court of Virginia’s denial of Winston’s
14 WINSTON v. PEARSON
habeas claims was an adjudication on the merits, entitled to
substantial deference under AEDPA.
As we explain below, we are not persuaded by the Com-
monwealth’s interpretation of Pinholster and Richter. Neither
case expressly delineates the contours of an "adjudication on
the merits" for AEDPA purposes, and we require more than
conjecture about the views of the Supreme Court before we
retreat from a decision that is the law of the case. Our deci-
sion in Winston I therefore endures. The Supreme Court of
Virginia’s denial of Winston’s Atkins ineffectiveness claim
was not an "adjudicat[ion] on the merits" under § 2254(d).
We must consequently proceed to review the claim de novo.
A.
The Commonwealth anchors its argument in its reading of
Pinholster and Richter. A review of these cases will accord-
ingly focus our analysis.
The Supreme Court in Pinholster reviewed the Ninth Cir-
cuit’s grant of habeas relief to a California prisoner. The
Supreme Court of California unanimously and summarily dis-
missed two habeas petitions submitted by Pinholster. Pinhol-
ster, 131 S. Ct. at 1396–97. Pinholster sought habeas relief in
federal court, and the district court held an evidentiary hearing
and granted his petition. Id. at 1397. The Ninth Circuit
affirmed en banc, holding that new evidence adduced at a fed-
eral evidentiary hearing could be considered in performing
analysis under § 2254(d)(1). Id.
Holding that "review under § 2254(d)(1) is limited to the
record that was before the state court that adjudicated the
claim on the merits," the Supreme Court rejected the Ninth
Circuit’s construction of AEDPA and reversed. Id. at 1398.
The Court characterized § 2254(d)(1)’s language as
"backward-looking" and "requir[ing] an examination of the
state-court decision at the time it was made." Id. "It follows,"
WINSTON v. PEARSON 15
continued the Court, "that the record under review is limited
to the record in existence at that same time i.e., the record
before the state court." Id. Summarizing its discussion, the
Court wrote, "If a claim has been adjudicated on the merits by
a state court, a federal habeas petitioner must overcome the
limitation of § 2254(d)(1) on the record that was before the
state court." Id. at 1400.
The Court rejected the argument that its holding rendered
§ 2254(e)(2)3 superfluous, in that § 2254(d) would now
impose a wholesale bar on federal evidentiary hearings,
affording § 2254(e)(2) no independent significance. It rea-
soned that § 2254(e)(2) "continues to have force where
§ 2254(d)(1) does not bar federal habeas relief," as when a
habeas claim does not fall under its compass because it was
not adjudicated on the merits in state court. Id. at 1401.
Applying the foregoing principles to Pinholster’s petition,
the Court held that § 2254(d) controlled the case. Id. at 1402.
Pinholster’s ineffectiveness claim had been adjudicated on the
merits in state court, and the parties agreed that the federal
claim was the same as that included in his state petitions. Id.
Though the Supreme Court of California summarily adjudi-
cated Pinholster’s petitions, the Court held that § 2254(d) "ap-
plies even where there has been a summary denial." Id.
Justice Sotomayor’s dissent explored the reach of the
majority’s analysis. She first expressed agreement with the
majority’s rejection of an approach apparently advanced by
some circuit courts. Citing Winston I, Justice Sotomayor
asserted, "Some courts have held that when a federal court
3
Section 2254(e)(2) cabins a federal habeas court’s discretion to grant
an evidentiary hearing where a habeas petitioner "has failed to develop the
factual basis of a claim in State court proceedings." As we concluded in
Winston I, § 2254(e)(2) does not apply to Winston, as he was diligent in
pursuing his Atkins ineffectiveness claim in state court. 592 F.3d at
551–52.
16 WINSTON v. PEARSON
admits new evidence supporting a claim adjudicated on the
merits in state court, § 2254(d)(1) does not apply at all and the
federal court may review the claim de novo." Id. at 1417
(Sotomayor, J., dissenting). "[A]gree[ing] with the majority’s
rejection of this approach," Justice Sotomayor reasoned that
endorsing this practice "would undermine the comity princi-
ples motivating AEDPA" by authorizing federal habeas courts
to "decline to defer to a state-court adjudication of a claim
because the state court, through no fault of its own, lacked all
the relevant evidence." Id. She limited her rejection of the
approach to claims adjudicated on the merits in state court,
"assum[ing] that the majority does not intend to suggest that
review is limited to the state-court record when a petitioner’s
inability to develop the facts supporting his claim was the
fault of the state court itself." Id. n.5. And even when a claim
was adjudicated on the merits in state court, Justice Soto-
mayor pointed to "situations in which new evidence support-
ing" such a claim "gives rise to an altogether different claim"
that is not subject to the strictures of § 2254(d)(1). Id.
Dialogue between Justice Sotomayor and the majority shed
light on the Court’s holding in Pinholster. Justice Sotomayor
proffered a hypothetical in her dissent: A petitioner diligently
attempts in state court to develop the factual foundation of a
claim that prosecutors withheld Brady4 material. The state
court denies relief on the grounds that the withheld evidence
produced does not rise to a sufficient level of materiality.
After its disposition, the state court orders the state to disclose
additional documents that the petitioner had timely requested.
The disclosed documents reveal that the state withheld other
Brady material, but state law prevents the petitioner from pre-
senting this new evidence in a successive habeas petition. Jus-
tice Sotomayor wondered whether the majority’s holding
would allow the petitioner to bolster his Brady claim, which
was already adjudicated on the merits by the state court, in
federal habeas court. Id. at 1417–18.
4
Brady v. Maryland, 373 U.S. 83 (1963).
WINSTON v. PEARSON 17
Responding to Justice Sotomayor’s hypothetical, the major-
ity first declined "to draw the line between new claims and
claims adjudicated on the merits." Id. at 1401 n.10. It then
recognized that Justice Sotomayor’s hypothetical "may well
present a new claim" not subject to § 2254(d). Id.
In Richter, the Court briefly added gloss to AEDPA’s "ad-
judicated on the merits" requirement. "When a federal claim
has been presented to a state court and the state court has
denied relief," the Court declared that "it may be presumed
that the state court adjudicated the claim on the merits in the
absence of any indication or state-law procedural principles to
the contrary." Richter, 131 S. Ct. at 784–85. That a state court
fails to attach an explanation to its decision does not preclude
its classification as an adjudication on the merits. Id. at 785.
B.
Closely scrutinizing the import of Pinholster and Richter,
we find nothing in those decisions that renders infirm our ana-
lytical framework in Winston I. Neither decision clarifies the
"adjudicated on the merits" requirement of § 2254(d)(1) such
that it compels disturbing our prior holding that the state-court
denial of Winston’s habeas petition was not an adjudication
on the merits. Remaining bound by that determination from
Winston I, we reaffirm that § 2254(d) does not apply to Win-
ston’s Atkins ineffectiveness claim and that de novo review of
the claim is appropriate.
Underpinning the Supreme Court’s discussion in Pinholster
is the terse acknowledgment that the habeas petitioner’s
claims had been adjudicated on the merits in state-court pro-
ceedings. Neither party in that case appeared to focus energy
on questioning whether § 2254(d)’s adjudicated-on-the-merits
requirement had been fulfilled. Echoing the parties and
assuming the incandescence of the state-court decision’s sta-
tus, the Court phrased its holding as applying only to claims
that had been adjudicated on the merits in state court. Pinhol-
18 WINSTON v. PEARSON
ster, 131 S. Ct. at 1398 ("[R]eview under § 2254(d)(1) is lim-
ited to the record that was before the state court that
adjudicated the claim on the merits." (emphasis added)); id.
at 1400 ("If a claim has been adjudicated on the merits by a
state court, a federal habeas petitioner must overcome the lim-
itation of § 2254(d)(1) on the record that was before that state
court." (emphasis added)). Not only that, the Court made
plain that its analysis and the strictures of § 2254(d) do not
apply to claims that had not been adjudicated on the merits in
state court. Id. at 1401 (rejecting argument that the majority’s
holding rendered § 2254(e)(2) superfluous by reasoning that
§ 2254(d) will not apply when "federal habeas courts . . . con-
sider new evidence when deciding claims that were not adju-
dicated on the merits in state court").
To the extent that Pinholster confronted the adjudication-
on-the-merits requirement, interplay between the majority
opinion and Justice Sotomayor’s dissent lends strength to our
holding in Winston I. As we found in Winston I, Winston was
hindered from producing critical evidence to buttress his
Atkins ineffectiveness claim—such as the 66 IQ score—by the
state court’s unreasonable denial of discovery and an evidenti-
ary hearing. Like the hypothetical petitioner posited by Justice
Sotomayor in Pinholster, Winston’s inability to produce
potentially dispositive evidence in state habeas proceedings
came about through no fault of his own. The Court’s tacit
acknowledgment that the hypothetical petitioner would be
free to present new, material evidence—because his claim had
not been adjudicated on the merits in state court—thus lends
at least some support to our holding in Winston I.
In any event, we need not discern in Pinholster an enthusi-
astic endorsement of Winston I. Quite the opposite, to disrupt
our earlier adjudication we are required to conclude that Pin-
holster "‘made a contrary decision of law applicable to the
issue,’" TFWS, Inc., 572 F.3d at 191 (quoting Aramony, 166
F.3d at 661). This we cannot do. Our holding in Winston I
was premised on the Supreme Court of Virginia’s failure to
WINSTON v. PEARSON 19
adjudicate Winston’s Atkins ineffectiveness claim on the mer-
its. Absent an adjudication on the merits, we determined that
§ 2254(d) deference was not owed to the state-court decision.
Pinholster would thus impeach Winston I only if it rejected
our conclusion that the Supreme Court of Virginia’s decision
was not an adjudication on the merits. We are not persuaded
that it did. The Court’s opinion contains almost no discussion
of the parameters of the adjudication-on-the-merits require-
ment, beyond its cursory assumption that the state-court deci-
sions at issue satisfied the mandate of § 2254(d). Far from
announcing a new rule to govern resolution of whether a
claim was adjudicated on the merits in state court, the Court
expressly declined to "decide where to draw the line between
new claims and claims adjudicated on the merits," id. at 1401
n.10. At bottom, nothing in Pinholster indicates that the
Court’s disposition casts doubt on—much less overrules—our
discussion of the adjudicated-on-the-merits requirement in
Winston I.
Nor does Richter demand that we reconsider our holding in
Winston I. The Court there simply presumed that, absent "any
indication or state-law procedural principles to the contrary,"
a summary decision from a state habeas court constitutes an
adjudication on the merits. Richter, 131 S. Ct. at 784–85.
Richter’s reasoning is inapposite here, where Winston does
not contest the thoroughness of the state-court decision but
rather the court’s unreasonable denial of his requests for dis-
covery and an evidentiary hearing. We found in Winston I that
the state court’s refusal to allow Winston to develop the
record, combined with the material nature of the evidence that
would have been produced in state court were appropriate
procedures followed, rendered its decision unbefitting of clas-
sification as an adjudication on the merits. Richter mentions
nothing of possible defects in a state-court decision save the
summary nature of its disposition, and we accordingly con-
clude that it does not affect our analysis in Winston I.
20 WINSTON v. PEARSON
To forestall the conclusion that Winston I remains valid, the
Commonwealth emphasizes Justice Sotomayor’s citation of
the decision in her dissent. Justice Sotomayor cited Winston
I to support the proposition that "[s]ome courts have held that
when a federal court admits new evidence supporting a claim
adjudicated on the merits in state court, § 2254(d)(1) does not
apply at all and the federal court may review the claim de
novo," an approach that she claimed the majority rejected.
Pinholster, 131 S. Ct. at 1417 (Sotomayor, J., dissenting). The
Commonwealth maintains that this language necessarily
means that the majority overruled Winston I.
But the Commonwealth’s reliance on Justice Sotomayor’s
dissent is misplaced. First, as a dissenter, Justice Sotomayor’s
views on the ramifications of the majority opinion are not suf-
ficient, without more, to compel us to reject the law of the
case. Second, we respectfully disagree with Justice Sotomay-
or’s view of Winston I. We did not hold that any time a fed-
eral habeas court "admits new evidence supporting a claim
adjudicated on the merits in state court, § 2254(d)(1) does not
apply at all," id. (emphasis added). We reasoned, rather, that
§ 2254(d)(1) does not apply to Winston’s case, as his Atkins
ineffectiveness claim was not adjudicated on the merits in
state court. This principle in fact finds support in Justice Soto-
mayor’s dissent, which acknowledges, "Of course,
§ 2254(d)(1) only applies when a state court has adjudicated
a claim on the merits," id. at 1417 n.5. Indeed, Justice Soto-
mayor "assume[d] that the majority does not intend to suggest
that review is limited to the state-court record when a petition-
er’s inability to develop the facts supporting his claim was the
fault of the state court itself." Id. Such is the case here. Thus
Justice Sotomayor’s dissent, if anything, endorses our holding
in Winston I.
That Winston I was not abrogated by intervening Supreme
Court precedent also finds support in our recent decision in
Richardson v. Branker, 668 F.3d 128 (4th Cir. 2012). There,
we cited with approval Winston I’s holding that the state-court
WINSTON v. PEARSON 21
decision did not qualify as an adjudication on the merits
because "Virginia state courts did not afford Winston an evi-
dentiary hearing and thus passed on the opportunity to adjudi-
cate his claim on a complete record." Richardson, 668 F.3d at
152 n.26 (alteration and internal quotations omitted). Never-
theless, we distinguished the petitioner’s case, in which the
state court "held an evidentiary hearing and received evi-
dence," from Winston I. Id. Nowhere did we express doubt
about the continuing validity of Winston I in light of Pinhol-
ster and Richter.
C.
Looking past the four corners of the Pinholster opinion, the
Commonwealth points to two decisions that it asserts estab-
lish that Winston I is no longer valid. We reject the Common-
wealth’s interpretations of these cases and locate nothing in
them that mandates rejecting our analysis in Winston I.
The Commonwealth first contends that our decision in
Jackson v. Kelly, 650 F.3d 477 (4th Cir. 2011), implicitly
determined that Pinholster had overruled Winston I. We dis-
agree. In Jackson, we characterized Pinholster as instructing
that, "when a habeas petitioner’s claim has been adjudicated
on the merits in state court, a federal court is precluded from
supplementing the record with facts adduced for the first time
at a federal evidentiary hearing." 650 F.3d at 492. Although
the district court had held an evidentiary hearing on the peti-
tioner’s claim—noting generally that the claim had not been
adequately developed in state court—we limited our review to
the state-court record, concluding that the state court had
adjudicated the claim on the merits. Id. at 485.
Nowhere in Jackson, however, did we illuminate the
adjudicated-on-the-merits requirement. Rather, in Jackson we
merely noted matter-of-factly that which did not seem to be
in dispute—that the state court had adjudicated the claim on
the merits. Here, in contrast, we are required to critically ana-
22 WINSTON v. PEARSON
lyze the status of the state-court decision. In that regard, we
must confront our own prior conclusion—which, as we have
explained, we cannot casually overrule—that the Supreme
Court of Virginia expressly did not adjudicate Winston’s
Atkins ineffectiveness claim on the merits. This important dis-
tinction, viewed in tandem with the limited discussion of the
adjudication-on-the-merits requirement in Jackson, convinces
us that the decisions are not incongruous.
Next, the Commonwealth directs our attention to Atkins v.
Clarke, 642 F.3d 47 (1st Cir. 2011), which it asserts recog-
nizes that Pinholster overruled Winston I. A closer review of
Clarke reveals that the Commonwealth’s interpretation is
erroneous. The petitioner in Clarke contended that his claims
had not been adjudicated on the merits in state court, and he
relied in part on Winston I in framing the argument. The First
Circuit initially noted unremarkably, "To the extent [Winston
I is] inconsistent with [Pinholster] . . . , [it is], of course, over-
ruled." Clarke, 642 F.3d at 49. Because there was "no doubt
that this case was adjudicated on the merits," the First Circuit
found the petitioner’s reliance on Winston I misplaced. Id.
The court did not, as the Commonwealth intimates, suggest
that our analysis of § 2254(d) in Winston I had been assailed
by Pinholster. It instead distinguished the case before it from
Winston I, noting that extending the rule in Winston I to cover
the petitioner’s case—in which all material facts had been
presented to the state court—would contravene Pinholster.
Nothing in the opinion detracts from our holding in Winston
I.5
5
The Commonwealth cites a bevy of other circuit decisions issued after
Pinholster that reviewed state-court habeas dismissals under § 2254(d).
But none of the cases present the factors that we found crucial to our hold-
ing in Winston I, and the courts in these cases cursorily assumed that the
claims had been adjudicated on the merits in state court. The decisions are
therefore of little aid to our task.
WINSTON v. PEARSON 23
IV.
After reaffirming that § 2254(d) does not apply to Win-
ston’s Atkins ineffectiveness claim, which the state court
failed to adjudicate on the merits, we proceed to review de
novo Winston’s claim and the district court’s decision to grant
habeas relief, Richardson, 668 F.3d at 138.
Winston contends that his trial attorneys were ineffective
for failing to argue to the jury during sentencing that Winston
is mentally retarded. Had the court concluded that he was
mentally retarded, Atkins would have barred imposition of a
death sentence as contrary to the Eighth Amendment’s prohi-
bition on cruel and unusual punishments. Virginia law pro-
vides that an individual is mentally retarded—and hence
ineligible for a death sentence—if he establishes a disability
originating before eighteen years of age characterized by "sig-
nificantly subaverage intellectual functioning as demonstrated
by performance on a standardized measure of intellectual
functioning" and "significant limitations in adaptive behav-
ior." Va. Code Ann. § 19.2-264.3:1.1(A). To meet the first
prong of the formulation, a petitioner must show an IQ score
of 70 or less. Hedrick v. True, 443 F.3d 342, 367 (4th Cir.
2006).
Reviewing the claim de novo, we conclude that Winston is
entitled to habeas relief. As we explain below, Winston has
demonstrated both deficient performance by his attorneys and
prejudice, as required under Supreme Court precedent. Had
Winston’s trial attorneys presented evidence of his mental
retardation at sentencing, there is a reasonable probability that
the court would not have sentenced him to death. We accord-
ingly affirm the district court’s grant of habeas relief.
A.
The familiar Strickland formulation governs our ineffec-
tiveness inquiry. To succeed on a claim of ineffective assis-
24 WINSTON v. PEARSON
tance of counsel, a petitioner must demonstrate deficient
performance and prejudice. Richter, 131 S. Ct. at 787. Review
of counsel’s actions is hallmarked by deference, and we are
mindful that "[i]t is ‘all too tempting’ to ‘second-guess coun-
sel’s assistance after conviction or adverse sentence.’" Id. at
788 (quoting Strickland, 466 U.S. at 689). We are not at lib-
erty to rely on hindsight to reconstruct the circumstances of
counsel’s conduct, "indulg[ing] ‘post hoc rationalization’ for
counsel’s decisionmaking that contradicts the available evi-
dence of counsel’s actions." Id. at 790 (quoting Wiggins v.
Smith, 539 U.S. 510, 526 (2003)).
Demonstrating deficient performance requires showing that
"‘counsel’s representation fell below an objective standard of
reasonableness.’" Id. at 787 (quoting Strickland, 466 U.S. at
688). A reviewing court conducting the deficient-performance
inquiry "must apply a ‘strong presumption’ that counsel’s rep-
resentation was within the ‘wide range’ of reasonable profes-
sional assistance." Id. (quoting Strickland, 466 U.S. at 689).
The critical question is "whether an attorney’s representation
amounted to incompetence under ‘prevailing professional
norms,’ not whether it deviated from best practices or most
common custom." Id. at 788 (quoting Strickland, 466 U.S. at
690).
Yet deference to the decisions of counsel is not limitless.
Attorneys have a duty to investigate their client’s case so as
to enable them to make professional decisions that merit dis-
tinction as "informed legal choices." See Elmore v. Ozmint,
661 F.3d 783, 858 (4th Cir. 2011). Genuinely evaluating tacti-
cal options is a necessity, and "[c]ounsel’s lack of preparation
and research cannot be considered the result of deliberate,
informed trial strategy." Hyman v. Aiken, 824 F.2d 1405,
1416 (4th Cir. 1987). The strong presumption that counsel’s
choices were part of an overarching strategy "does not over-
come the failure of . . . attorneys . . . to be familiar with read-
ily available documents necessary to an understanding of their
client’s case." Id.
WINSTON v. PEARSON 25
Once a petitioner has established deficient performance, he
must prove prejudice—"‘a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different.’" Richter, 131 S. Ct. at 787 (quot-
ing Strickland, 466 U.S. at 694). "‘A reasonable probability
is a probability sufficient to undermine confidence in the out-
come.’" Id. (quoting Strickland, 466 U.S. at 694). Pointing to
some "‘conceivable effect on the outcome of the proceeding’"
is insufficient to satisfy Strickland’s demanding test. Id. at
788 (quoting Strickland, 466 U.S. at 693). "The likelihood of
a different result must be substantial, not just conceivable."
Id. at 792.
B.
Applying the Strickland formulation to the actions of Win-
ston’s attorneys during sentencing, we hold that they rendered
deficient performance that prejudiced Winston.
As to the first prong of the standard, the failure of Win-
ston’s attorneys to review his school records and interview
school officials about his mental functioning amounts to defi-
cient performance. Counsel were obligated "to be familiar
with readily available documents necessary to an understand-
ing of [Winston’s] case," Hyman, 824 F.2d at 1416. By
neglecting to review Winston’s school records and instead
relying on Nelson to ascertain their import, counsel abdicated
their responsibility. As the attorneys admitted, reading the
documents would have raised the potential for a successful
claim that Atkins barred imposition of a death sentence on
Winston. This would have prompted them to interview Win-
ston’s school teachers and counselors, facilitating an investi-
gation that carried dual significance under Virginia’s mental-
retardation statute. Not only would interviews with school
officials have enabled counsel to obtain from Lageman Win-
ston’s 66 IQ score, these conversations would have provided
counsel with compelling evidence of Winston’s limitations in
adaptive behavior, which in turn would have prompted them
26 WINSTON v. PEARSON
to press Nelson to explore further the merits of mental retar-
dation as a sentencing defense.
Counsel’s lack of diligence in pursuing a mental-
retardation defense contravened their duty to investigate to
make defensible professional decisions qualifying as "in-
formed legal choices." See Elmore, 661 F.3d at 858. Contrary
to the Commonwealth’s suggestions, the presumption that the
attorneys’ omissions were part of trial strategy "does not over-
come [their] failure . . . to be familiar with readily available
documents," Hyman, 824 F.2d at 1416. As in Hyman, coun-
sel’s "lack of preparation and research cannot be considered
the result of deliberate, informed trial strategy," id.
Having shown deficient performance, Winston has also
demonstrated "‘a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different,’" Richter, 131 S. Ct. at 787 (quoting Strick-
land, 466 U.S. at 694). Establishing a successful Atkins
defense to a death sentence requires presenting proof of an IQ
of 70 or below, Hedrick, 443 F.3d at 367, and "significant
limitations in adaptive behavior," Va. Code Ann. § 19.2-
264.3:1.1(A). As to the first prong, had counsel reviewed the
school records and found the Reclassification, they testified
that they would have interviewed Lageman and searched for
a potential below-70 IQ score. And Lageman, as she testified,
would have given Winston’s attorneys the report of Winston’s
66 IQ score. Investigation by counsel would have similarly
uncovered evidence of significant limitations in Winston’s
adaptive behavior. Through interviews of school officials and
review of school records, counsel could have presented evi-
dence at sentencing demonstrating that Winston met the sec-
ond prong of the mental-retardation test.
Nelson’s testimony at the federal evidentiary hearing fur-
ther bolsters our conclusion that Winston has shown preju-
dice. Nelson, the court-appointed mental-health expert,
conceded that he could not remember reading the Reclassifi-
WINSTON v. PEARSON 27
cation. Nor was he presented with the 66 IQ score or informa-
tion from school officials and counselors. A close review of
such documents, according to Nelson, would have been
important to his analysis, including his conclusions about
Winston’s adaptive functioning. "It’s certainly possible," tes-
tified Nelson, "my opinion might have been different with this
wealth of other information." J.A. 720.
Considering the question anew, we therefore agree with the
district court that, "had counsel read the overlooked records,
followed up, raised the issue, and marshaled the evidence" of
mental retardation, Winston, 784 F. Supp. 2d at 634, there is
a reasonable probability that the outcome of the proceeding
would have been different. Accordingly, Winston is entitled
to habeas relief.
The Commonwealth attempts to resist this result by refer-
encing the district court’s alleged disregard of
§ 2254(e)(1)and our decision in Green v. Johnson, 515 F.3d
290 (4th Cir. 2008). Its contentions are unavailing.
Turning first to the import of § 2254(e)(1), because the
Supreme Court of Virginia refused discovery and an evidenti-
ary hearing—and the evidence that would have been gleaned
from these vehicles is critical to Winston’s claim—its deci-
sion includes few factual findings to which we must defer
under § 2254(e)(1). The district court properly credited the
state court’s findings that Winston had scored 77, 76, and 73
on three IQ tests and that Winston could have been classified
by the school system as mentally retarded without scoring 70
or below on an IQ test. But it correctly found that the new evi-
dence produced by Winston—pursuant to which the state
court made no factual findings—compelled granting him
relief. Section 2254(e)(1) obviously presupposes that the state
court made factual findings to which a federal habeas court
might defer. Thus where the state court failed to adjudicate a
claim on the merits by refusing to facilitate production of
28 WINSTON v. PEARSON
new, material evidence, meaningful deference to its factual
findings is well-nigh impossible.
Similarly, the Commonwealth’s reliance on Green is unper-
suasive. The Commonwealth maintains that Green stands for
the proposition that federal courts are bound by a state court’s
determination that presentation of a single below-70 IQ score,
when accompanied by three above-70 scores, does not satisfy
the statutory definition of subaverage intellectual functioning.
The Commonwealth’s argument is misplaced, for two rea-
sons. First, we reviewed the state-court decision in Green for
objective unreasonableness under § 2254(d). 515 F.3d at 300.
In contrast, we review Winston’s ineffectiveness claim de
novo. Second, the state court in Green discredited the lone
below-70 score, leaving it to consider three above-70 scores.
Id. Here, however, the Supreme Court of Virginia did not
impugn the validity of Winston’s 66 IQ score, as it did not
even review it.
To summarize, we agree with the district court that Win-
ston has made a clear showing of prejudice flowing from his
attorneys’ deficient performance. Presentation of the 66 IQ
score, the Reclassification, and testimony from school offi-
cials and counselors would have significantly strengthened
Winston’s sentencing case such that we can confidently ascer-
tain a "‘reasonable probability that, but for counsel’s unpro-
fessional errors,’" Richter, 131 S. Ct. at 787 (quoting
Strickland, 466 U.S. at 694), the court would not have sen-
tenced Winston to death.
V.
In his cross-appeal, Winston asks us to revise the remedy
ordered by the district court to reflect that he is entitled to a
new full sentencing proceeding. We find modifying the relief
ordered by the district court both unwarranted and unneces-
sary in light of our understanding of the district court’s state-
ment of remedy.
WINSTON v. PEARSON 29
The district court had no authority to fashion a particular
procedure to remedy the Atkins violation. See Henderson v.
Frank, 155 F.3d 159, 168 (3d Cir. 1998) ("This is not a direct
appeal from a federal conviction, where upon vacating the
judgment this Court would have unlimited power to attach
conditions to the criminal proceedings on remand. Rather, this
is federal habeas corpus relating to a state conviction." (cita-
tion omitted)). We therefore construe the district court’s
directive to the Commonwealth to "conduct a trial on the
question of whether Winston is mentally retarded, and sen-
tence him accordingly," J.A. 635, as not restricting the range
of remedies for the Atkins violation to a single-issue trial on
mental retardation. Instead, that language must be understood
to mean that, should the Commonwealth continue to seek the
death penalty, Virginia law governs the question of whether
our grant of the writ necessitates an entirely new sentencing
phase or permits a narrow trial on the issue of mental retarda-
tion. Having afforded Winston habeas relief, at this stage we
leave it to the Commonwealth’s prerogative to craft a remedy
consonant with the strictures of state law.
Framing the district court’s order in its proper context
moreover persuades us that the cross-appeal is likely moot.
The Commonwealth has conceded in its supplemental brief-
ing that, if Winston is entitled to relief, state law likely
requires it to give Winston a full resentencing proceeding.
This is all that Winston requests.
VI.
For the foregoing reasons, we affirm the district court’s
grant of habeas relief.
AFFIRMED